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IN THE SUPREME COURT OF INDIA (CRIMINAL WRIT JURISDICTION) [Order XXXVIII of SCR, 2013] (UNDER ARTICLE32 OF THE CONSTITUTION OF INDIA) WRIT PETITION (CRL) No. ______Of 2020
IN THE MATTER OF: ILTIJA …Petitioner VERSUS UNION OF INDIA & ORS …Respondents
PAPER – BOOK (FOR INDEX PLEASE SEE INSIDE)
ADVOCATE FOR THE PETITIONER: AAKARSH KAMRA
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IN THE SUPREME COURT OF INDIA (CRIMINAL WRIT JURISDICTION) [Order XXXVIII of SCR, 2013] (UNDER ARTICLE32 OF THE CONSTITUTION OF INDIA) WRIT PETITION (CRL) No. ______Of 2020
IN THE MATTER OF: ILTIJA …Petitioner VERSUS UNION OF INDIA & ORS …Respondents
INDEX
S. Particulars of documents Page no. of part to Remark N. which it belongs
Part I Part II
(i) (ii) (iii) (iv) (v)
1 Court Fees
2 Listing Proforma A-A1 A-A1
3 Cover Page of Paper Book A-2
4 Index of Record of Proceedings A-3
5 Defects List A-4
Note Sheet NS1 to…
5 Synopsis
6 List of Dates
7 Writ Petition with Affidavit
8 ANNEXURE-P-1 A true typed copy of the Impugned Detention Order dt. 05.02.2020, along with the Impugned Dossier dt. 05.02.2020.
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10 ANNEXURE-P-2 A truecopy of the Order passed by this Hon’ble Court dt. 05.09.2019 11 ANNEXURE-P-3 A true typed copy of the news- report dt. 08.09.2019 available at https://www.ndtv.com/india- news/they-can-challenge-their- detention-nsa-ajit-doval-on-j-k- political-leaders-2097181 12 ANNEXURE-P-4 A true typed copy of the undertaking format/bond under Section 107 r/w Section 117 CrPC dt. NIL 13 ANNEXURE-P-5 A true typed copy of the newsreport dt. 15.10.2015 available athttps://www.financialexpress. com/india-news/amit-shah- interview-says-omar-abdullah- mehbooba-mufti-detained- under-psa-jammu-and-kashmir- article-370/1735832/ 15 Filing Memo
16 Vakalatnama
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SYNOPSIS The present is a writ petition under Article 32 against an order dated
05.02.2020 (hereinafter, the “Detention Order” or the “Impugned Detention
Order”), issued u/s 8 (1) of the Jammu & Kashmir Public Safety Act, 1978
(hereinafter, “the PSA” or “the 1978 Act”) for preventively detaining Ms.
Mehbooba Mufti (hereinafter, “Detenu”), the former Chief Minister of the
State of Jammu and Kashmir, and also former Member of Parliament and the
President of the Jammu and Kashmir People’s Democratic Party (JKPDP), a registered political party recognised by the Election Commission of India.
Significantly, this order has come when the Detenuwas already under detention since August 5,2019, without any palpable authority of the law although it is now being suggested by the State that the same was under
Section 107 r/w 117 of the Code of Criminal Procedure, 1973 (“CRPC”).
The Petitioner is the daughter and next friend of the Detenu.
The Impugned Detention Order signed by the District Magistrate,
Srinagar (Respondent No.3 herein)served upon the Detenu at 9.30 PM on
05.02.2020, along with the ‘Grounds’ on which her detention is ordered, whichare wholly and substantially based on the recommendation of and the
‘dossier’ (hereinafter ‘Impugned Dossier’) prepared by the Senior
Superintendent of Police, Srinagar (Respondent No.4 herein). No other material showing the facts on which the grounds of were based were given and the Impugned Dossier which is replete with personal remarks in bad taste, (Scheming, hard headed, short lived marriage, Daddy’s Girl etc) is the only material cited in the “grounds” of detention.
The foremost reason cited for continued detention, now under PSA was that the six months maximum period of detention under section 107 and
117 CrPC was expiring on the very day the Impugned Detention Order(ref: WWW.LIVELAW.IN
Section 116(6) proviso in CrPC) was passed, and that the Detenu had declined to sign a bond or “surety”. This bond and surety which she was repeatedly asked to sign, the records would show,interalia included the promise that: “In case of release from detention, I will not make any comment(s) or issue statement(s) or make public speech(s) hold or participate in public assemblies related to the recent events in the State of
Jammu and Kashmir, at the present time, since it has the potential of endangering the peace and tranquility and law and order in the State or any part thereof.”
Thus, the admitted basis of the detention is a blanket undertaking not to make any comment on the recent events in the State.
On this count alone, the Detention Order should be set aside, for, preventive detention, tolerated by our polity and jurisprudence as a necessary evil, is not meant to stifle legitimate opposition to state policy.
Furthermore, the Impugned Dossier only refers to expressions of opinion in the pastas its basis, for, there is not the least suggestion that the
Detenu, twice elected MP, also CM, has the least involvement in any and violent activity ever. The grounds of the Detention Order, refer to the past 10 years without details but utterances listed in them range between a time period March 2019 and August 2019. Significantly, only these utterances
(12 in number) are listed without a single accompanying instance of any adverse effect on law and order. Moreover, the utterances were not even considered worthy of registering an FIR of the barest Ranbir Penal Code offence, at the time made. Therefore, the matters laid down by the statute
(PSA) as relevant for reaching a decision are conspicuous by their absence. WWW.LIVELAW.IN
The least stale or most recent utterance noted in the Impugned Dossier is of August 5,2019, on which date she was taken into detention. It opposes the abrogation of Article 370 as unconstitutional- a challenge which even this court has deemed fit to issue notice on and is hearing. The unconstitutionality of the purported abrogation of Article 370 is a common view held by many legal scholars and political scientists and many articles and writings have published taking the same view. Ex facie it is legitimate expression that is sought to be punished and prevented vide the Impugned
Detention Order. The instant case therefore warrants this Hon’ble Court’s interference, for what is sought to be prevented is not any threat to public order but a view unpalatable to the ruling dispensation. This cannot be justified as “reasonable objective basis for subjective satisfaction” as required by the statute and as interpreted by this Court in several judgments.
(See for instance, PebamNingolMikoi Devi v. State of Manipur (2010) 9
SCC 618 at 626)
Likewise, an utterance questioning of the passage of the statute criminalising Triple Talaq when the Supreme Court has already ruled it illegal, and terming it as a misplaced priority, that seems to punish Muslims is listed as a ground although it has no remotest possibility of inciting any disorder. The Impugned Dossier cavils at this as a divisive approach, but fails to show how this will or can disturb order, at any time. If a law is limited to Muslims as a community, any discussion or criticism thereof will also refer to Muslims. If the former is not divisive why should the latter be?
Twelve utterances of the Detenu with their dates deliberately concealed are willy-nilly listed with not a whisper of any disturbance at the time uttered but chosen to be made grounds of detention a year later. Each of WWW.LIVELAW.IN
the grounds and their ex facie legitimacy as expression and complete lack of nexus with any possible break down of public order. They will more fully be discussed in the Grounds of the instant Petition. Suffice it to say that the
Impugned Detention Order is a simpliciter gag order in the guise of a preventive detention order, held to be ultra vires the law and the Constitution by this Court many times. Indeed, an order of preventive detention has been issued against expressions in respect of which even an injunction cannot be granted by a Court of law!
Thus, the grounds are not only stale, for they refer to utterances more than six months old and admittedly made with no adverse consequences to law and order, butare also vitiated fornon-application of mind insofar as they fail to show to why thesaid utterances pose a threat to public order. Other than a bald statement, not a single instance of any public disturbance has been cited. Nor is there any application of mind as to why such utterances if they contravene any law, cannot be managed by the normal criminal process.
This Court in V Shantha v. State of Telangana AIR 2017 SC 2625 for instance laid down that “The rhetorical incantation of the words, ‘Goonda’ or ‘prejudicial to maintenance of public order cannot be sufficient justification to invoke the draconian power of preventive detention.”The very fact that not even an FIR was registered at that time demonstrates that the utterances were and are unexceptional.
The provisions of Section 8(3)(b) of the 1978 Act are wholly violated and none of the requirements laid down therein are satisfied bringing the instant case within the purview of the expression “acting in a manner prejudicial to the maintenance of public order”.No facts supporting the grounds other than the words have been supplied and it would be safe to WWW.LIVELAW.IN
assume they are non-existent. The order abounds with legal malafides and malice in law.
Furthermore, the Impugned Detention Order is wholly based on the
Impugned Dossier which is manifestly biased, slanderous and libelous against the Detenu and which no reasonable person ought to rely on for depriving a citizen of her fundamental freedoms and person liberty. An inexhaustive list of such diabolically slanderous expressions and sentences used against the Detenu is given below.
(i) The Impugned Dossier describes the Detenu “hard-headed and
scheming mind.”
(ii) The Impugned Dossier also calls the political party which the
Detenu heads, i.e. Jammu and Kashmir People’s Democratic
Party, as of “dubious nature”. It is submitted that the JKPDP
has formed popularly elected government twice in the State of
Jammu and Kashmir, including the second time – in alliance
with the present ruling party at the centre.The Impugned
Dossier goes on to disapprove the symbol of the JKPDP which
is taken from the election symbol of “Muslim United Front”
and that the colour green used by the party is “radical”.
(iii) The Impugned Dossier also vulgarly describes the Detenu as
“Daddy’s Girl” insults her as “Kota Rani” after a medieval
queen who rose to power through dubious means such as
poisoning her opponents.
(iv) The Impugned Dossier also makes unwarranted comment on
the marital status of the Detenu terming that it did not “last
long”. WWW.LIVELAW.IN
(v) The Impugned Dossier also describes the Detenu’s politics as
“cheap” and the Detenu’s mindset variously to be “communal” ,
“divisive” and that the main motive of the Detenu is to “create
an atmosphere of fear and chaos”
This Hon’ble Court has stated that, “Preventive detention is by nature, repugnant to democratic ideas and an anathema to the rule of law.
Preventive detention is often described as a ‘Jurisdiction of suspicion’. The detaining authority passes the order of detention on subjective satisfaction.
To prevent misuse of this potentially dangerous power, the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion, mandatory and vital”. Contrary to the above, there detaining authority under the guise of the Act of 1978 acts in complete violation of Article 14 and 21 of the
Constitution by failing to furnish any specific, live and proximate grounds for preventively detaining the Detenu that has rational nexus with the stated object of preventing acts prejudicial to public order.
Hence the present Writ Petition under Article 32 of the Constitution.
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LIST OF DATES
August 5, 2019 The President issued the Constitution (Application to
Jammu and Kashmir) Order, 2019 (“C.O. 272”). The said
Order, issued under Article 370(1) with the purported
concurrence of the Government of the State of Jammu
and Kashmir, inserted Article 367(4) of the Constitution
of India. In particular, the newly inserted Article
367(4)(c) stated that references in the Constitution to the
Government of the State of Jammu and Kashmir would
be construed as including references to the Governor of
Jammu and Kashmir. Further, Article 367(4)(d) amended
sub clause (3) of Article 370 by replacing the expression
“Constituent Assembly of the State…” with the
“Legislative Assembly of the State,” paving way for the
issuance of the subsequent order in effect purported to
abrogate Article 370 on the recommendation of
Parliament, acting in place of the legislative assembly
because of the President’s proclamation under Article
356 being in vogue.
05.08.2019 The mother of the Petitioner, the Detenu was detainedat
about 6.30 PM after being taken from her Fairway,
Gupkar Road residence. The Detenu, after being given
twenty minutes to pack her clothes, was detained by the
Executive Magistrate of Class I and was taken to Hari
Nivas, accompanied by police personnel. This was the WWW.LIVELAW.IN
last contact between the Petitioner and her mother. The
Order of detention dt. 05.08.2019, signed by the
Executive Magistrate, did not disclose the law under
which the Detenu was being detained.
06.08.2019 The President issued C.O. 273 (impugned herein) in
exercise of powers under Article 370(3) of the
Constitution as amended by C.O. 272, declared that
Article 370 would cease to apply with effect from
06.08.2019.
05.09.2019 The Petitioner from 06.08.2019, was herself placed under
restraint in various ways and disallowed by the
Respondents from meeting her mother. The Petitioner
then moved this Hon’ble Court and was able to meet the
Detenu only on this Hon’ble Court’s intervention vide.
Order dt. 05.09.2019 in WP(Crl) 250 of 2019.
08.09.2019 The National Security Advisor, a functionary of the
Respondent No.1 is reported to have issued statements,
inter alia that the political leaders in the Jammu and
Kashmir would be in detention indefinitely until a
conducive environment democracy to function.
Sep, 2019 onwards The Detenu was repeatedly being exhorted to sign the
undertaking that included a promise “to not make any
public comment …or participate in assembly related to
recent events in the State of Jammu and Kashmir.”
15.10.2019 Newsreports emerged where the Union Home Minister is
reported to have said that the Detenu has been placed WWW.LIVELAW.IN
under preventive detention under the Public Safety Act,
1978.
Nov, 2019 The Detenu is shifted tothe Subsidiary jail in T6,
Transport lane, Srinagar.
05.02.2020 The Respondent 4 prepared a dossier on the Detenu
which has several statements and social media posts by
her dating back to April 2019. Furthermore, the dossier
betrays a clear political bias of the Respondent No.4
against the Detenu.
For instance at one place, the dossier calls the Detenu
“hard-headed and scheming mind,”. At another place, it
calls the political party which the Detenu heads, i.e.
Jammu and Kashmir People’s Democratic Party, as of
“dubious nature” despite the fact that the JKPDP has
formed popularly elected government twice in the State
of Jammu and Kashmir. Furthermore, it goes on to
describe the Detenu as “Daddy’s Girl” and to insult her
as “Kota Rani” after a medieval queen who rose to power
through dubious means such as poisoning her opponents.
All of which were without any basis whatsoever.
05.02.2020. On the same day, the District Magistrate Srinagar, the
Respondent No.3 herein, issued the Impugned Detention
Order drawing up grounds of such detention under
Section 8(1) of the 1978 Act, completely basing it on the
said dossier prepared by the Respondent No.4. WWW.LIVELAW.IN
At 9.30 PM, the Detenu was hand-delivered the
Impugned Detention Order along with the Impugned
Dossier and the Grounds of Detention.
Hence this Writ Petition.
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IN THE SUPREME COURT OF INDIA (CRIMINAL WRIT JURISDICTION) [Order XXXVIII of SCR, 2013] (UNDER ARTICLE32 OF THE CONSTITUTION OF INDIA) WRIT PETITION (CRL) No. Of 2020 IN THE MATTER OF: Iltija aged about 32 years, d/o Ms. Mehbooba Mufti, r/o Fairview Gupkar Road, Srinagar, Jammu and Kashmir
…PETITIONER
VERSUS
1. Union of India Through Secretary, Home Affairs, New Delhi – 110001 …RESPONDENT NO.1
2. Union Territory of Jammu and Kashmir Through Principal Secretary, Home Department, Secretary Road, PakkiDhaki Old Heritage City, Jammu and Kashmir – 180001 ...RESPONDENT No. 2
3. The District Magistrate (Srinagar) First Floor, Amar Niwas Complex, Tanki Pora-Srinagar-190010 …RESPONDENT NO.3
4. The Senior Superintendent of Police (SSP), Distt. Police Hqrs. Batamalloo, Srinagar - 190010, …RESPONDENT NO.4
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WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
TO,
THE HON’BLE CHIEF OF INDIAAND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE PETITIONER ABOVENAMED:
MOST RESPECTFULLY SHOWETH: -
1. The present is a writ petition under Article 32 against an order dated
05.02.2020 (hereinafter, the “Detention Order” or the “Impugned
Detention Order”), issued u/s 8 (1) of the Jammu & Kashmir Public
Safety Act, 1978 (hereinafter, “the PSA” or “the 1978 Act”) for
preventively detaining Ms. Mehbooba Mufti (hereinafter, “Detenu”), the
former Chief Minister of the State of Jammu and Kashmir, and also
former Member of Parliament and the President of the Jammu and
Kashmir People’s Democratic Party (JKPDP), a registered political party
recognised by the Election Commission of India. The instant Petition
seeks a writ of habeas corpusto be issued against the Respondents and to
set the Detenu at liberty by quashing and setting-aside the Detention
Order as ultra vires Articles 14, 19, 21 and 22 of the Constitution and
ultra vires the PSA. The instant Writ Petition also seeks to quash the
recommendation of and the dossier (hereinafter, “Impugned
Dossier”)prepared by the Respondent No.4, on which the Detention
Order is based,for being ultra vires Article 14 of the Constitution. WWW.LIVELAW.IN
A copy of the Detention Order dt. 05.02.2020, along with the Impugned
Dossier dt. 05.02.2020 is annexed herewith and marked as
ANNEXURE-P-1 (from Pg___to ___).
1A. The Petitioner has not approached any Respondents with any representation in view of the fact that the reliefs prayed for herein can only be given by Constitutional Courts.
PARTIES
2. The Detenu is the Petitioner’s mother Ms. Mehbooba Mufti (hereinafter,
“Detenu”), the most recent chief minister of the State of Jammu and
Kashmir. She is the President of the Jammu and Kashmir Peoples
Democratic Party, a registered political party in the State of Jammu and
Kashmir. The Detenu has been the chief minister of the State of Jammu
and Kashmir between 04.04.2016 and 19.06.2018. She is also a former
two time Member of Parliament, being elected Lok Sabha from Anantnag
constituency in the state of Jammu and Kashmir. The Detenu’s
immediate family living in India includes two daughters including the
Petitioner herein, her mother who is nearly 80 years of age, was in the
care of the Detenu; and sister Ms. Rubaiya Sayeed who lives in Chennai.
3. The Petitioner is a citizen of India. No civil, criminal or revenue litigation
involving the Petitioners, which has or could have a legal nexus with the
issues involved in the Petition is pending before any Court or Tribunal.
The Petitioner is filing this Writ Petition in her capacity as the Detenu’s
daughter and next-friend.
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4. The Respondent No.1 is the Union of India. The Respondent No.2 is the
Administration of the Union of Territory of Jammu and Kashmir. The
Respondent No.3 is the District Magistrate Srinagar, who has passed the
Impugned Detention Order. The Respondent No.4 is the Senior
Superintendent of Police, Srinagar who has prepared the Impugned
Dossier and made a recommendation to Respondent No.3 to issue the
Impugned Detention Order.
BACKGROUND FACTS
5. On August 5, 2019 , the President issued the Constitution (Application
toJammu and Kashmir) Order, 2019 (“C.O. 272”). The said Order, issued
under Article 370(1) with the purported concurrence of the Government
of the State of Jammu and Kashmir, inserted Article 367(4) of the
Constitution of India. In particular, the newly inserted Article 367(4)(c)
stated that references in the Constitution to the Government of the State
of Jammu and Kashmir would be construed as including references to the
Governor of Jammu and Kashmir. Further, Article 367(4)(d) amended
sub clause (3) of Article 370 by replacing the expression “Constituent
Assembly of the State…” with the “Legislative Assembly of the State,”
paving way for the issuance of the subsequent order in effect purported to
abrogate Article 370 on the recommendation of Parliament, acting in
place of the legislative assembly because of the President’s proclamation
under Article 356 being in vogue.
6. The same day, the mother of the Petitioner, the Detenu was detained at
about 6.30 PM after being taken from her Fairway, Gupkar Road
residence. The Detenu, after being given twenty minutes to pack her WWW.LIVELAW.IN
clothes, was detained by the Executive Magistrate of Class I and was
taken to Hari Nivas, accompanied by police personnel.
7. The following day, on 06.08.2019, the President issued C.O. 273 in
exercise of powers under Article 370(3) of the Constitution as amended
by C.O. 272, declared that Article 370 would cease to apply with effect
from 06.08.2019.
8. The Petitioner from 06.08.2019, was herself placed under restraint in
various ways and disallowed by the Respondents from meeting her
mother. The Petitioner then moved this Hon’ble Court and was able to
meet the Detenu only on this Hon’ble Court’s intervention vide. Order dt.
05.09.2019 in WP(Crl) 250 of 2019. A true copy of the Order passed by
this Hon’ble Court dt. 05.09.2019 is annexed herewith and marked as
ANNEXURE-P-2 (From Pg___to___).
9. In September 2019, The National Security Advisor, a functionary of the
Respondent No.1 is reported to have issued statements, inter alia that the
political leaders in the Jammu and Kashmir would be in detention
indefinitely until a conducive environment democracy to function. A
true copy of the news-report dt. 08.09.2019 available at
https://www.ndtv.com/india-news/they-can-challenge-their-detention-
nsa-ajit-doval-on-j-k-political-leaders-2097181 is annexed herewith and
marked as ANNEXURE-P-3 (From Pg___to ___).
10. During the period of detention, the Detenu was repeatedly being exhorted
to sign the undertaking that included a promise “to not make any public
comment …or participate in assembly related to recent events in the State
of Jammu and Kashmir.” A copy of the undertaking format dt. NIL is
annexed herewith and marked as ANNEXURE-P-4(From Pg___to ___). WWW.LIVELAW.IN
11. On 15.10.2019, newsreports emerged where the Union Home Minister is
reported to have said that the Detenu has been placed under preventive
detention under the Public Safety Act, 1978. A true copy of the
newsreport dt. 15.10.2015 available
athttps://www.financialexpress.com/india-news/amit-shah-interview-
says-omar-abdullah-mehbooba-mufti-detained-under-psa-jammu-and-
kashmir-article-370/1735832/ is annexed herewith and marked as
ANNEXURE-P-5(From Pg___to ___).
12. Later, in November, the Detenu was shifted from Hari Nivasto the
Subsidiary jail in T6, Transport Lane, Srinagar.The address is incorrectly
mentioned as ‘T6, Tulsibagh’ in the Impugned Detention Order.
13. It is pertinent to mention that the Order of detention dt. 05.08.2019,
signed by the Executive Magistrate, did not disclose the law under which
the Detenu was being detained, although it was purported to be under
Section 107 of CrPC. The proceedings under Section 107 ought to have
come to a conclusion on 05.02.2020 following the expiry of the
stipulated time limit of six months under Section 116(6) of CrPC.
14. However, a ‘dossier’ (hereinafter, “Impugned Dossier”) was hastily
prepared by Respondent No.4 on the same day, and the Impugned
Detention Order, completely relying on the said dossier was also issued
the same day and served on the Detenu at 9.30 PM. The whole process
was designed such that she could not be released from detention and as if
the State was choosing one law or another as a pre-text to keep the
Detenu under detention without paying heed to the different requirements
and pre-conditions necessary to invoke the different provisions.
15. The Impugned Dossier is not only a hastily prepared one. It betrays
political bias and personal bias against the Detenu. The dossier is WWW.LIVELAW.IN
also.slanderous and libelous against the Detenu, and completely unbecoming of a responsible officer holding the position such as the
Respondent No.4. It contains statements and imputations of the kind that should find no place in an official document. An inexhaustive list of such diabolically slanderous expressions and sentences used against the
Detenu is given below.
(i) The Impugned Dossier describes the Detenu “hard-headed and
scheming mind.”
(ii) The Impugned Dossier also calls the political party which the
Detenu heads, i.e. Jammu and Kashmir People’s Democratic
Party, as of “dubious nature”. It is submitted that the JKPDP
has formed popularly elected government twice in the State of
Jammu and Kashmir, including the second time – in alliance
with the present ruling party at the centre. The Impugned
Dossier goes on to disapprove the symbol of the JKPDP which
is taken from the election symbol of “Muslim United Front”
and that the colour green used by the party is “radical”.
(iii) The Impugned Dossier also vulgarly describes the Detenu as
“Daddy’s Girl” insults her as “Kota Rani” after a medieval
queen who rose to power through dubious means such as
poisoning her opponents.
(iv) The Impugned Dossier also makes unwarranted comment on
the marital status of the Detenu terming that it did not “last
long”.
(v) The Impugned Dossier also describes the Detenu’s politics as
“cheap” and the Detenu’s mindset variously to be “communal” WWW.LIVELAW.IN
,“divisive” and that the main motive of the Detenu is to “create
an atmosphere of fear and chaos”
Needless to say, none of the aforementioned charges in the Dossier
are substantiated except baldly quoting some of the social media posts
of the Detenu.
16. The Impugned Dossier therefore is liable to be quashed, and the
Impugned Detention Order which is wholly and substantially and
inseverably based on the Impugned Dossier is consequently liable to be
quashed as non-est in the eyes of law.
GROUNDS
17. The reliefs sought for herein are based on the following grounds which
are taken alternatively and cumulatively and without prejudice to one
another. The Petitioner also craves liberty to urge other grounds at a later
stage in the proceedings if so appropriate.
IMPUGNED DETENTION ORDER DISCLOSES NO GROUND
THAT HAS ANY RATIONAL NEXUS WITH DISTURBANCE TO
PUBLIC ORDER
A. BECAUSE This Court has, in a catena of cases, held that a writ court
hearing a challenge to an order of preventive detention, will assess
whether the acts complained of ex facie have the tendency of disturbing
public order. This would not amount to substituting the Detaining
Authority’s subjective satisfaction, but instead an assessment of whether
the subjective assessment has been formed on relevant grounds or WWW.LIVELAW.IN
reasonable objective basis (See for instance, Sama Aruna v. State of
Telangana, (2018) 12 SCC 150 and PebamNingolMikoi Devi v. State of
Manipur (2010) 9 SCC 618 at 626) Indeed, in a case under PSA, this
Court has held that if mere words like ‘revolt’ or ‘revolution’ are held to
have the propensity to disturb public border then the entire legislatures
may have to go behind the bars. (See Mohd. Yousuf Rather v. State of
J&K, (1979) 4 SCC 370at 380)
IMPUGNED DETENTION ORDER IS BASED ON STALE
GROUNDS
B. BECAUSE the grounds of detention mentioned in the Impugned
Detention order are ‘stale’ inasmuch as all of them were made atleast six
months earlier and for which the Detenu has already been detained ansd
have no live and proximate link to detaining her in the present time.
Staleness is assessed not by any time frame straightjacket but in terms
whether the effect has spent itself and whether the future has any link to
such effect. In the present case a political leader’s many utterances on
disparate subjects made, heard agreed or disagreed with, in the course of
political discourse, are being raked up with no nexus to any public order
issue then or now.
C. BECAUSE it has been held in Sama Aruna v. State of Telangana, (2018)
12 SCC 150 at page 158 that
“The detention order must be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not WWW.LIVELAW.IN
to punish him for something he has done but to prevent him from doing it. See G. Reddeiah v. State of A.P. [G. Reddeiah v. State of A.P., (2012) 2 SCC 389 : (2012) 1 SCC (Cri) 881] and P.U. Iqbal v. Union of India [P.U. Iqbal v. Union of India, (1992) 1 SCC 434 : 1992 SCC (Cri) 184].”
This Court went on to add,
“Incidents which are old and stale and in which the detenu has been granted bail, cannot be said to have any relevance for detaining a citizen and depriving him of his liberty without a trial.”
It further quoted the ratio of this Hon’ble Court in Khudiram Das v. State
of W.B., (1975) 2 SCC 81 in approval, wherein it was held:
“9. … The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. Partap Singh v. State of PunjabAIR 1964 SC 72. If there are to be found in the statute expressly or by implication matters which the authority ought to have regard to, then, in exercising the power, the authority must have regard to those matters. The authority must call its attention to the matters which it is bound to consider.”
D. BECAUSE this Court in T.A. Abdul Rahman v. State of Kerala [(1989) 4
SCC 741 : 1990 SCC (Cri) 76], held that where the authority takes into
account stale incidents which have gone-by to seed it would be safe to
infer that the satisfaction of the authority is not a genuine one.
E. BECAUSE the Detenu was already in detention and no new fact/ground
that merited continued detention under the 1978 Act has been cited in the
Impugned Detention. It clearly appears from the haste with which the
Impugned Dossier was prepared on 05.02.2020 and the Impugned Order
having been issued the same day, it was a deliberate attempt by the
Respondent No.4 to deprive the Detenu of her fundamental rights.
Existence of fresh grounds necessitating her detention issine qua non for WWW.LIVELAW.IN
ordering further detention of the Detenu.
F. BECAUSE the Impugned Order effectively attempts to do indirectly
what is not prohibited to be done directly under Section 116(6) i.e.
extension of the detention under Section 107 of CrPC for a period of time
beyond 6 months.
IMPUGNED DETENTION ORDER DOES NOT ASSESS
WHETHER NORMAL CRIMINAL PROCESS IS SUFFICIENT
TO DEAL WITH THE ADVERSE CONSEQUENCES IF ANY OF
THE DETENU’s SPEECHES
G. BECAUSE, although not completely a bar to preventive detention, the
viability of the normal criminal process as sufficient should be assessed.
In the present case there is no such assessment.
H. BECAUSE this Court has held, inter alia, in Rekha v. State of T.N.,
(2011) 5 SCC 244 that the detaining authority has to satisfy itself that the
ordinary criminal process is not sufficient to deal with the Detenu before
invoking the powers of preventive detention. In Rekha, while setting
aside the detention order therein, reasoned:
“Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. … Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the WWW.LIVELAW.IN
answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.”
It is submitted that no such assessment has been made in the instant case.
IMPUGNED DETENTION ORDER IS BASED ONLY
COMPLETELY EXTRANEOUS MATERIAL AND IS
COLOURABLE EXERCISE OF POWER
I. BECAUSE completely extraneous material, having no bearing on the
possibility of any public disturbance have been relied on including
several personally loaded comments in the Impugned Dossier.
J. BECAUSE refusal to sign a general bond without any reference to
violence or disturbance has been made a ground of preventive detention,
which is wholly unauthorised by the PSA and indeed completely
incompatible with the Constitution. A refusal simpliciter cannot be a
valid ground. Especially becauseany political comment on recent
developments was posited as definitionally a threat to public order. The
understanding of requirement under the statute is inherently flawed.
Furthermore, a general bond curbing her legitimate exercise of free
speech is manifestly an unconstitutional condition liable to be set aside.
K. BECAUSE the detaining authority has not provided or looked at her
speeches and expression as a whole to assess the statutory requirement.
In fact in the time period of ten years that the Impugned Order considers,
the Detenu has taken oaths of office as MP and as a Chief Minister of the
State to uphold the Constitution and has discharged her duties without a WWW.LIVELAW.IN
single instance of provocation or instigation of violence and has at
several points called for peace.
L. BECAUSE there has complete cooperation and coordination between the
Govt under which the SSP recommending authority functions and
Impugned Order is liable to be set aside on manifest non-application of
independent mind by the Respondent No.3.
M. BECAUSE the material on record suggested that the Respondent No.3
had acted under dictation from Respondent No.1 or some of the
functionaries of the Respondent No.1 and the Respondent No.3 ought to
be directed by this Hon’ble Court to produce all instructions and
directions received from the functionaries of the Respondent No.1
including the National Security Advisor and the officials in the Ministry
of Home Affairs in connection with the detention or release of the
Detenu. It is trite law that a decision by an authority acting under
dictation from another authority not vested with the power under the
statute is void and is liable to be set aside. (See Chintpurni Medical
College v. State of Punjab(2018) 15 SCC 1).
N. BECAUSE It has been held in V. Shantha v. State of Telangana, (2017)
14 SCC 577at page 579 that:
“An order of preventive detention, though based on the subjective satisfaction of the detaining authority, is nonetheless a serious matter, affecting the life and liberty of the citizen under Articles 14, 19, 21 and 22 of the Constitution. The power being statutory in nature, its exercise has to be within the limitations of the statute, and must be exercised for the purpose the power is conferred. If the power is misused, or abused for collateral purposes, and is based on grounds beyond the statute, takes into consideration extraneous or irrelevant materials, it will stand vitiated as being in colourable exercise of power.”
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It is submitted that the observation is squarely applicable in the instant case and the Impugned Detention Order is clearly a colourable exercise of power.
GROUNDS ARE ILLUSORY, VAGUE AND IRRELEVANT AND
ISSUED FOR IMPROPER PURPOSE
O. BECAUSE the grounds of detention are ex-facie illusory to
the extent of being vague and irrelevant, vitiating thereby the satisfaction
required to be entered by the detaining Authority and rendering the
detention order illegal and unconstitutional.
P. BECAUSE the Detention Order is wholly based on the
Impugned Dossier prepared by Respondent No.4 which is slanderous,
libelous and clearly demonstrative of political and personal bias against
the Detenu and completely extraneous to the authority and import of the
power exercised by Respondent No.4 for such purpose. The Impugned
Dossier clearly suffers from legal mala fides and is liable to be quashed
for violation of Article 14 of the Constitution and the Impugned
Detention Order, which is wholly based on the same is also
consequentially bad in law.
Q. BECAUSE several grounds in the Impugned Detention Order is based on
the Impugned Dossier which deliberately suppresses the date of
utterances from the detaining authority, rendering the grounds of
detention vague and liable to be struck down.
R. BECAUSE several utterances have been selectively picked and imputed
motives of divisiveness and instigation to violence when there was none
in in the utterances themselves. Relying on specific phrases or words in WWW.LIVELAW.IN
an utterance to invoke the powers of preventive detention have been struck down by this Court on the ground of vagueness. For instance in
Mohd. Yousuf (supra), this Court struck down several grounds of the detention order impugned therein as having no palpable connection with disturbance to public order thus:
“23. The grounds of detention begin with the statement that the detenu is a “die-hard Naxalite”. Dr Singhvi described a Naxalite as a “votary of change by resort to violence” and urged that as the meaning ascribed to the expression by the daily press (Marxist Exclamation: the Capitalist Press !). Many may not agree with Dr Singhvi. Some think of Naxalites as blood-thirsty monsters; some compare them to Joan of Arc. It all depends on the class to which one belongs, one's political hues and ideological perceptions. At one stage of the argument Dr Singhvi himself described a Naxalite as an “ideological revolutionary”. The detenu himself apparently thought that it meant no more than that he was a believer in the Marxist- Leninist ideology and so he affirmatively declared that he was a firm believer in that ideology and was proud of that fact. Though he did urge that the expression Naxalite connoted a person who sought change through violent means, Dr Singhvi had, ultimately, to confess that the expression ‘Naxalite’ was as definite or as vague as all words describing ideologies, such as democracy etc. were. It is enough to say that it is just a label which can be as misleading as any other and is, perhaps, used occasionally for that very purpose.
24. In the third paragraph of the grounds of detention it is said that the detenu made a speech in which he asked his audience to shun the life of dishonour and rise in revolt against oppression. In the fourth paragraph he is stated to be responsible for posters bearing the caption “No solution without revolution”. It is also stated that the posters asked the people to prepare themselves for revolution. Now, expressions like “revolt” and “revolution” are flung about by all and sundry in all manner of context and it is impossible to attach any particular significance to the use of such expressions. Every turn against the establishment is called “revolt” and every new idea is labelled as “revolutionary”. If the mere use of expressions like “revolt” and “revolution” are to land a person behind the bars what would be the fate of all our legislators? It all depends on the context in which the expressions are used. Neither paragraph three nor paragraph four of the grounds of detention specifies the particular form of revolt or revolution which the detenu advocated. Did he incite people to violence?What words did he employ? What, then, is the connection between these grounds and “acting in any manner prejudicial to the maintenance of the public order”? There is no answer to be gleaned from the grounds recited in paragraphs three and four which must therefore, be held to be both irrelevant and vague.
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25. In paragraph five it is said that the detenu instigated educated unemployed youth to go on a hunger strike. A hunger strike, in our country, is a well-known form of peaceful protest but it is difficult to connect it with public disorder. We consider this ground also to be vague and irrelevant. The allegation that the detenu made derogatory remarks about Shri Sheikh Mohammed Abdullah, Chief Minister of Kashmir, and compared him with General Zia of Pakistan appears to us, again, to be entirely irrelevant. I do not think it is necessary to refer to all the grounds in any further detail as that has been done by my brother Shinghal, J.” (Emphasis supplied)
S. BECAUSE it has been held by this Hon’ble Court in S.R. Venkataraman
[S.R. Venkataraman v. Union of India, (1979) 2 SCC 491] as follows:
“6. It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith. As was stated by Lord Goddard, C.J. in Pilling v. Abergele Urban District Council [Pilling v. Abergele Urban District Council, (1950) 1 KB 636 (DC)] where a duty to determine a question is conferred on an authority which state their reasons for the decision,and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter.” The above passage was quoted in approval in Sama Aruna(supra) to hold that the preventive detention order therein suffered from legal malice.
It is submitted that in the instant case, the Impugned Detention Order, which is ostensibly issued to curb the Detenu’s legitimate exercise of speech and has not nexus whatsoever with the purpose of the PSA or the definition under Section 8(3)(b) of PSA ought be held to suffer from legal malice and deserves be set aside on that ground.
CONDITIONS REQUISITE UNDER 8(3)(b) of PSA NOT SATISIFED
T. BECAUSE none of the requisiteconditions are satisfied in the instant
case to bring it within the purview of “acts prejudicial to maintenance of
public order” as defined under Section 8(3)(b) of the Public Safety Act WWW.LIVELAW.IN
which reads as follows:
(b) “acting in any manner prejudicial to the maintenance of public order” means- (i) “promoting, propagating, or attempting to create, feeling of enmity or hatred or disharmony on grounds of religion, race, caste, community, or region; (ii) making preparations, or attempting its use, or using, or instigating, inciting, or otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order; (iii) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order: (iv) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more, where the commission of such offence disturbs, or is likely to disturb public order. This alone renders all the grounds in the detention order vague and irrelevant and makes the detention order wholly illegal, arbitrary and unconstitutional.
PARA-WISE CHALLENGE TO THE GROUNDS ON WHICH THE
IMPUGNED DETENTION ORDER IS BASED.
U. BECAUSE n view of Section 10A of the PSA (the vires of the same that
the Petitioner does not concede and reserves the liberty to challenge
separately in another proceeding if so required or adviced), the grounds
are severable from one another and therefore the detaining authority has
to satisfy itself that the exercise of powers under preventive detention is
warranted under each ground claimed in the Order. The table indicates
below, none of the grounds of detention mentioned in the order taken
stand-lone nor cumulatively satisfy the requirements under Section
8(1)(b) of the said Act and furthermore, each of the grounds suffer from
one or more of the vices of vagueness, improper purpose, staleness,
arbitrariness, non-adherence to principles of natural justice or absence of WWW.LIVELAW.IN
Detention Ground Illegality / Unconstitutionality
(Original emphasis retained in
Bold, supplied emphasis in Italics)
Ground – 1 (a) The grounds of detention u/s 107 of CrPC and the grounds of The statement of Executive Magistrate detention for maintenance of has also been examined in the instant public order under 1978 Act are case which explicitly states that materially different and cannot be proceedings under Section 107 CrPC used interchangeably as has been were initiated in view of likely breach of done in the instant case. If it were peace by the Subject. A series police the same, certainly the standards reports were also received thereafter applicable necessitating a six- substantiating the continuation of month detention or a maximum of detention. The Magistrate has further two-year detention have to be stated that the period of detention under read in as vastly different. This the said provision has expired however conflation of the two standards neither the detenue has submitted surety betray a non-application of mind as per the provisions of the Act nor the in the issuance of the Detention necessitating reasons under the said Order, in respect of this proceedings have changed. The Hon’ble corresponding Ground of High Court has laid down detailed detention. guidelines regarding the detention under the J&K Public Safety Act, of a person (b) Furthermore, the series of police who is already in detention, and reports has not been disclosed to reasonable grounds need to exist for such the Detenu and the Detention a detention. In light of the provisions of Order is liable to be set aside on the Act(s) and prevalent sensitive law that ground alone as the supply of and order situation there is every material on which the Grounds of apprehension in the matter that public detention is based is sine qua non order could be disturbed by the subject and is otherwise a violation of the by provocative speeches or publication of principles of natural justice under such material or statements which may Article 14 of the Constitution of be detrimental to maintenance of public India. Disclosure of all relevant order, a number of instances / examples material is an essential procedural have been cited by the Executive safeguard. It has been held that Magistrate to substantiate the the history of liberty is the history recommendation. of procedural safeguards. (See KamleshkumarIshwardas Patel v. Union of India [(1995) 4 SCC 51 : 1995 SCC (Cri) 643] vide para 49.) These procedural safeguards are required to be zealously watched and enforced by the court and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. As observed in Rattan Singh v. State of Punjab [(1981) 4 SCC 481 : 1981 SCC (Cri) 853] : (SCC p. 483, para 4)
(c) As observed in Abdul Latif Abdul Wahab Sheikh v. B.K. Jha [(1987) 2 SCC 22 : 1987 SCC (Cri) 244] vide SCC para 5: (SCC p. 27) WWW.LIVELAW.IN
“5. … The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.”
Ground – 2 (a) There is no reported instance of the Detenu’s speeches having The dossier submitted by the District caused any violence whatsoever. Police, Srinagar delineates the political There is no such material in the journey of the subject citing a series of dossier nor is there such a instances leading to disturbance in publicly documented fact. The public order and in many cases inciting conclusion that the Detenu’s violence which indeed is detrimental to speeches in the last ten years have maintenance of public order. A number caused public order disturbance is of incidents of last more than 10 years a figment of the Respondent have been cited wherein the subject No.3’s imagination. Nor as the indulged in inciting violence thereby Detenu been ever charged with leading to disturbance in public order. offences amounting breach of The situation in Kashmir valley has peace or enmity between religious improved in recent months with business groups. establishments, trade, services, export and other sectors registering normal (b) The time frame of 10 years is not activity however at the same time some proximate enough standard for the serious attempts have been made, overtly invocation of the 1978 Act. This or covertly, to disturb public order which makes the ground manifestly encompasses the involvement of some stale. persons in attacks on security establishment, civilian business areas and (c) “prevalent security scenario” is a even targeting the common people I their vague and unverifiable term and routine way of life. The subject having a betrays non-application of mind history of making provocative speeches by Respondent No.3 and charged statements leading to (d) Similarly, “disturbance in public incitement of violence on several order” is a vague, arbitrary and occasions in the political career has been loose standard and indicates no stated in police dossier, as a potential satisfaction to the rigours of threat to maintenance of public order in Section 8(3)(b) of the 1978 Act. view of the prevalent security scenario and also stated to be required as a measure for enabling peace and tranquility in the region.
Ground – 3 (a) Even assuming the allegation to be true, without conceding, The police dossier has further stated “glorifying militancy” or sections of the subject ranging from “divisible politics” are merely speeches glorifying militants to creating political positions that may or may not in a given case amount to fears among majority population based tendency to breach public order. on divisive politics among the masses. In the instant case, the The approach of Subject has been based Respondent No.3 has not applied on creating a rift between the groups of his mind as to whether any such law-abiding masses. There have been speech specifically has caused many occasions when the Subject reports such breach of public peace in the WWW.LIVELAW.IN
separatism about which several past, even if some such speech confidential and secret reports have been were glorifying militants or filed / submitted by respective agencies divisive in nature. The ground which are of very serious nature. ought be held to be vague and illusory as per the Mohd. Yousuf (supra) ratio. (b) The confidential and secret reports allegedly relied on by the Respondent No.3 to issue the Impugned Order has not been supplied to the Detenu and therefore the Order suffers from failure to adhere to principles of natural justice and violative of Article 14.
Grounds 4 – 5 (a) The statements merely betray a political position in exercise The police dossier has further quoted of the fundamental right to several instances which include: free speech under Article 19 Statement on August 5th – 2019, of the Constitution. “That abrogation of Article 370 hasn’t (b) Detention for merely just made accession null and void and exercising one’s right to free also reduces India to an occupation speech against governmental action is manifestly force in J&K”. Another statement disproportionate and arbitrary same date on record is as follows: - and causes a chilling effect on “Once again government of India has the exercise of such rights. pushed Kashmiri’s to the brink there It is settled law that the effect is no other way but to oppose this (c) of speech must be examined, illegal and unconstitutional onslaught for the purposes of limiting on our dignity.” such a right, from the stand Every Citizen has a right to protest point of a reasonable person however the statement recorded above and not from the stand point clearly reflect that a divisive attempt was of a weak-minded and wildly passionate individual. By that made thereby provoking the political standard, the said statements cadre of a particular area or ideology for are hardly provocative or street protests and violence. These instigating as has been alleged statements examine in the backdrop of in the Impugned Order. several such earlier incidences prove, beyond reasonable doubt, the existing (d) The ground is manifestly potential of the subject to disturb public vague, illusory, and irrelevant. order in the region. It is also stale given that it was made six months ago and for which the Detenu has already been under detention. Ground – 6
(a) The equal effect of the legislation or Another evidence submitted by the police otherwise is a political take and the is the following public statement: Respondent No.3 is using the same to “Government of India’s intention is discredit and disagree with the clear and sinister they wanted to Detenu’s statements. Such change the demography of the only disagreement however is without any Muslim majority State in India, dis- basis characterized as a call for empower Muslims to the extent where violence and to create divisions in the they become 2nd class citizens in their society. WWW.LIVELAW.IN
own state”.An Act passed by the Parliament with statutory majority has (b) Furthermore, if Respondent No.3’s been terrified as an attempt against the own contention is that every rational resident citizens of a particular mind knows that reorganization will not lead to any oppression of one faith religionnot withstanding the fact that the over another. If that is the case, it is legislation is equally applicable to all the not clear at all how the Respondent citizens irrespective of the religion, caste, No.3 has come to the conclusion that identity or political affiliation. A political the said statements will have any effect leader of such a standing is expected to at all on the minds of the public. behave in a manner which is not such as an attempt to incite violence, disturb (c) It is evident that the Respondent No.3 public order or create such divisions has allowed his own political biases to based on religion or identity which may colour his judgment on the necessity to lead to loss of life or properly, as the case detain the Detenu and therefore the Impugned Order ought to be struck may be. Every rational mind would fail down for considering factors wholly to understand as to how a legislation irrelevant to the issue at hand. related to re-organization of a state or province makes people of one faith as 2nd class citizens, directly or indirectly. History is replete with examples where Thinkers triggered evolution of society. A political leader in 21st century so brazenly inciting religion to divide the people based on religion, that too in an area with sensitive security situation / eco-system is indeed a potential threat for maintenance of public order. Such appeals and statements have the potential of disturbing public order to such an extent leading to massive loss to life and property. This can also trigger violence in other regions of the country in view of religion and identity being invoked in such a manner.
Ground – 7 (a) The said statements were issued by the Detenu in April, 2019, The designed instigation can be gauged nearly a year before the Impugned from the following statements made Detention Order and have no through social media based on nothing proximity whatsoever to order of detention. Following such but blatant lies aimed at demoralizing statements no violence was security forces: “Every human even a reported. militant deserves dignity after death. Armed forces use of chemicals in (b) The Respondent No.3 also goes encounters disfiguring their bodies, on to unwarrantedly comment on inhuman imagine the emotions that the motives and aims of the will overcome a boy who sees his Detenu, which is wholly brother’s mutilated changed body, extraneous and irrelevant to the would you be surprised if he picked up determination of whether a a gun”. This statement notwithstanding particular statement or statements have the tendency to cause breach the fact that no such evidence was found of peace, which relates to the even by a Commission in the Instant ‘effect’ of such speech. case, reflects the deliberate attempts of the subject in causing disturbance to the (c) The Respondent No.3 has also public order. A leader is expected to allowed his own judgment and WWW.LIVELAW.IN
invoke spirit of inquiry before making ideals of a good leader and used such an irresponsible statement aimed at that as a test instead of the provoking sentiments and inciting statutorily prescribed test under violence. Section 8(3)(b) of the 1978 Act. Such a ground is manifestly arbitrary and liable to be struck down.
Ground – 8 The Respondent No.3 vide the Impugned Order once again has chosen to Another statement of the subject unwarrantedly comment on the motives submitted by the police as a material and aims of the Detenu, which is wholly evidence is: “Any thrashing civilians in extraneous and irrelevant to the the state is nothing new. But determination of whether a particular manhandling civil officers marks a statement or statements have the new low. The valley & its people are tendency to cause breach of peace, which being choked to a silent death. For how relates to the ‘effect’ of such speech. long will you oppress them in their own land? Is this what we deserve for choosing India over Pakistan?”. The incident was yet to be enquired while such a statement was made aimed at disturbing public order.
Ground – 9 (a) “Demoralizing Security Forces” is not at all a verifiable standard The police dossier further narrated the within the Section 8(3)(b) of the attempts aimed at inciting masses so as to 1978 Act. The usage of the same create issues of disturbance in public in the Impugned Order smacks of irrationality and arbitrariness and order and demoralizing security forces by consideration of extraneous facts. making unscrupulous statements vis-à- vis the security exercises being (b) The Impugned Order notes that undertaken for safety and security of the statement was made in April common people. The following 2019. If the statement were announcements made in month of April- designed to “incite the masses” as 2019 is reflective of this: is alleged, there is no material provided wherein such acts of “Kashmiri’s now need to seek violence actually resulted or was permission to use roads that attempted and stopped. rightfully belong to them & pay taxes for seems like GOIs plan is to reduce us to second class citizens in our own territory. The valley’s story has all the elements of a Greek tragedy “and “How can you restrict civilians on our main highway? You want to smother Kashmiris change the demographics of J&K State and imprison them in their own land? Over my dead body.”
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Grounds 10 & 11 The emphasized portions of the ground similarly consider irrelevant factors and Citizens are entitled to make statements has caused the Respondent No.3 to of their choice under the freedom of substitute his political wisdom over the speech and expression guaranteed by the Detenu’s in order to exercise powers under the 1978 Act, which is wholly Constitution however this is subject to arbitrary and unconstitutional. reasonable restrictions as contained under the same provisions. A leader needs to Usage of completely vague and exercise caution, more carefully than a unverifiable and non-standard terms such common citizen. The following statement as “sensitive security scenario” smacks of is again a visible attempt to incite non-application of mind and mechanical attempts at disturbing public order: “Fail automatism and recitation of such terms to understand the need to pass the like a mantra. triple talaq bill especially since the Supreme Court had already declared it illegal. Undue interference seemingly to punish Muslims. Given the current state of the economy, should this really have been a priority?” Another public statement circulated through social media has been highlighted by the police “India in 2019 - Muslims & other minorities are demonised& punished In Assam, a senior Muslim citizen is beaten up & forced to eat pork which is forbidden in Islam.”Similar statements made in a sensitive security scenario can disturb public order which makes out a case for preventive measures required to be taken.
Ground -12 (a) “glorification and justification” of actions of any one cannot be a Further, the subject has been glorifying ground for detention under and justifyingactions of anti-national Section 8(3)(b) and the Impugned elements, a pronouncement in this behalf Order does not state how such glorification would lead to regarding rioting done by criminals violence or whether it indeed lead within the premises of Central Jail is to public order disturbance in the enough to indicate the same. past.
(b) “Prisoners are entitled to “Prisoners are entitled fundamental human rights” is a to fundamental human rights & position in law true under the using brute force to quell Constitution and the Respondent protests is a clear violation. No.3 holding any thoughts contrary to this is not only Pertinent to mention that unconstitutional, but a violation of inmates protested after alleged the oath of his office. desecration of Quran. GOI wants to turn Kashmir into an open-air prison & convert actual Jails into Guantanamo.” WWW.LIVELAW.IN
Ground – 13 The emphasized portions of the ground similarly consider irrelevant factors and Another attempt underlined in the dossier has caused the Respondent No.3 to is the statement “This is, Kashmir, not substitute his political wisdom over the Palestine. We won’t allow you to turn Detenu’s in order to exercise powers under the 1978 Act, which is wholly our beloved land into an open-air arbitrary and unconstitutional. prison. Jis Kashmir ko khoon say seencha who Kashmir humarahai.” Criticizing of Government policies in a democratic setup is not a crime, but whipping up of mass hysteria based on details far away from truth intended to provoke disturbance to public order is a worth to be culled for protection of safety, security of common people and development of nation.
Ground – 14 The emphasized portions of the ground similarly consider irrelevant factors and “Jamaat, an organization that has has caused the Respondent No.3 to done great work in upliftment of poor substitute his political wisdom over the makes you uncomfortable owing to its Detenu’s in order to exercise powers under the 1978 Act, which is wholly Islamic ideology. You’d rather extend arbitrary and unconstitutional. patronage to rabid right-wing orgs that lunch innocents on flimsy excuses & spearhead a divisive agenda to persecute minorities.” An organization banned following the provisions laid down under the statutes has been praised which could been seen well within rights of a citizen to criticize or object a policy however at the same time making such a statement about division in society on religious grounds is seen as another attempt to create disturbance, the right forum, even after criticism would have been a court of law instead of invoking religion and terming it as persecution of minorities reflect the designs aimed at creating public disorder. Another public statement contained in the dossier reflecting the attempts to incite violence is “Last I checked, we were a democracy. But this sounds like a diktat of Martial Law. After bringing Kashmir to the brink the administrations adamant on ensuring collective punishment for Kashmiris.”
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Ground – Unnumbered Para (a) No such material evidence has been produced by the Respondent after 14 No.3 in support of the said ground.
Whereas, material evidence has been (b) The repeated imputation of the produced by the police substantiating the Detenu’s motives and designs case that deliberate attempts made by the clearly betray malafides on the subject to create an atmosphere of fear part of Respondent No.3 in and chaos, so as to create mass agitation issuing the Impugned Order. leading to disturbance of public order including incitement of violence; are seen as a potential repeat attempt to incite violence at this juncture in Kashmir particularly and rest of the region in general. However in light of the facts and gravity of the situation in order to ford strong apprehensions which are augured by the profile and actions stated above and in order to stop the subject from indulging in activities which are aimed at disturbing public order, detention under the provisions of PSA at this stage has become imperative.
Ground – Unnumbered Para – In a catena of decisions, it has been held that “expediency” is not a ground of the second and thid from Para 14 deprivation of fundamental rights and that it has to be justified on the anvil of Necessity. (See for instance, Rangarajan Whereas, the case has been examined v. Jagjivan Ram, (1989) 2 SCC 574) under the provisions of The Jammu and Kashmir Public Safety Act. Judgements issued by Hon’ble High Court on various aspects of the detention under PSA and after due application of mind pursuant to perusal of material evidence, documents and reports submitted by the Police, Magistrate and other agencies I am of the view that, in view of the serious activities of the subject prejudicial to the maintenance of public order, a strong case has been made for immediate measures under the J&K PSA for detention of the subject in order to avoid disturbance to public order in the region.
On the basis of grounds stated, I have reached to the conclusion that it would be expedient to detain Mrs. Mehbooba Mufti D/o Sh. Mufti Muhammad Sayeed, R/O Bijbehara, District Anantnag A/P R/O Nowgam, District Srinagar, under the provisions of J&K Public Safety Act, 1978, for which orders are being issued WWW.LIVELAW.IN
separately.
V. BECAUSE all of the grounds cited in the Impugned Detention Order are
based on social media posts or ‘tweets’ which are short written
statements, although publicly accessible, but are addressed to and
generally seen only by those persons who follow the Detenu on the social
media site twitter and the Impugned Detention Order fails to take that
into account in determining the likelihood of such utterances causing
public disorder.The Impugned Detention Order is wholly liable to be set
aside as unreasonable for not considering relevant factors and ultra vires
Article 14.
W. BECAUSE the Impugned Detention Order proceeds on the sole basisof
the Impugned Dossier as purportedly provided by the Senior
Superintendent of Police and as such being arbitrary, vague, irrelevant,
whimsical and fanciful deserves to be quashed by an appropriate writ of
this Hon'ble Court because the Respondent No.3 took no steps to
independently inquire into the veracity of the said material or the truth of
its contents.
18. The Petitioner has not filed any Petition or proceeding before any other
court or tribunal for the same or similar reliefs. The Petition is without
prejudice,to any extent or in any manner whatsoever, to the rights of the
Petitioner and/or the Detenu to challenge the vires of the provisions of
the PSA and/or Section 107 of the CrPC in separate proceeding/s before
this Hon’ble Court or any other forum.
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PRAYER
19. It, is therefore, most respectful prayed that this Hon’ble Court may
graciously be pleased to:
(1) To issue writ in the nature of Habeas Corpuscommanding the
Respondents to produce the person of the detenu forthwith before this
Hon'ble Court for being set at liberty;
(2) To issue an appropriate writ, direction or order quashing the
impugned order of detention dated 05.02.2020 and the grounds
thereof as ultravires Articles 14, 19, 21 and 22 of the Constitution;
(3) To issue an appropriate writ, direction or order quashing the
impugned order of detention dated 05.02.2020 and the grounds
thereof as ultraviresSection 8 of the Jammu and Kashmir Public
Safety Act, 1978;
(4) To issue an appropriate writ, direction or order quashing the
impugned dossier dated 05.02.2020 prepared by the Respondent No.4
and the recommendation based on the same as being ultra vires
Article 14 of the Constitution;
(5) To award appropriate compensation to the Detenu for the illegal
and/or unconstitutional detention that she has suffered;
(6) To award costs of this litigation to the Petitioner;
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(7) Pass such other or further orders as this Hon'ble Court may deem fit
and proper in the facts and circumstances of the case as well in the
interest of justice.
FOR THIS ACT OF KINDNESS, THE PETITIONER ABOVENAMED AS IN DUTY BOUND SHALL EVER PRAY.
DRAWN ON: 18.02.2020 FILED ON: 19.02.2020 DRAWN BY: PRASANNA S& AAKARSH KAMRA
FILED BY: AAKARSH KAMRA, Advocate on Record